Snatching the Power of the Purse

In prior posts (see here, here and here), I argued that Garrett Epps (and, to a lesser extent, Michael Abramowicz) had adopted an overly broad interpretation of the Public Debt Clause and that this interpretation, even if accepted, could not justify invalidating the debt limit. These errors are minor, however, compared to Epps’s proposal that the President enforce the Public Debt Clause by declaring the debt limit unconstitutional and ordering the Treasury Secretary to borrow money without congressional authorization.

Epps defends this position on the grounds that the President takes an oath to uphold the Constitution and is therefore obligated to ensure compliance with the “absolute command of our nation’s fundamental law.” Although the President’s action would violate the debt limit statute, “no congressional statute can command or permit our government to violate the Constitution.”

At first blush, this sounds very much like the theories advanced by John Yoo and other advocates of executive power. A statute which unconstitutionally constrains executive power is void and therefore can be ignored.

Epps himself makes this analogy, arguing: “during the weeks after September 11, [Yoo] breezily wrote that ‘the constitutional structure requires that any ambiguities in the allocation of a power that is executive in nature- such as the power to conduct military hostilities- must be resolved in favor of the executive branch.’” Epps contends that the same rationale should apply to the debt limit: “Surely the power to safeguard the national credit is ‘executive in nature,’ too. It is commanded by the Constitution, and it concerns the national interest as fully as does military action.” Thus, Yoo’s logic should equally support a President’s decision to ignore the debt limit (“sauce for the Bush goose, an administration lawyer might argue, should be sauce for the Obama gander.”).

But Epps’s theory goes well beyond anything that Yoo has argued. Yoo contends that a statute which conflicts with presidential powers, particularly in the national security, may be invalid. But even under Epps’s reading, the Public Debt Clause does not give the President any power. It merely imposes a constitutional duty, which the President is obligated to fulfill as a consequence of his oath to uphold the Constitution. However, the President’s duty to safeguard the national debt no more enables him to assume Congress’s power of the purse than it would enable him to assume the judicial power when (in his opinion) the Supreme Court acts in an unconstitutional manner.

Moreover, even in the national security area, where the President unquestionably has wide-ranging powers, it is recognized that he must rely on Congress for funding. Even the most die-hard proponents of executive power do not question this as a general matter. See, e.g., John Yoo, Crisis and Command 196-97 (2009) (explaining how Congress used its power of the purse to curtail President Polk’s maximalist demands during the Mexican-American War, thereby “demonstrat[ing] the checks that Congress always has available against the executive, even at the height of his wartime powers.”); id. 342 (noting that President’s national security powers do not give him authority over the funding of the military) . Indeed, many observers believe that the power of the purse is the only effective check, short of impeachment, that Congress still has to rein in the executive branch.

It is ironic that Epps, of all people, would now seek to transfer this quintessential congressional power to the President. Just a few years ago, Epps warned of the danger of the “runaway presidency,” fearing that “there are no means by which a president can be reined in politically during his term.” Because of this problem, he explained, “runaway presidents have at times committed the country to courses of action that the voters never approved- or ones they even rejected.”

Epps was particularly concerned about the situation where “a president with little or no mandate uses the office to further a surprising, obscure, or discredited political agenda.” He went on to explain that “[t]he most egregious case arises when a president’s policy and leadership have been repudiated by the voters, either by a defeat for reelection or by a sweeping rejection of his congressional allies in a midterm election.”

Sounds a lot like the current situation, does it not? Yet for some reason Epps is no longer concerned about the prospect of a runaway presidency, To the contrary, he is actively promoting a runaway presidency by encouraging the President to assert a power that no president before has ever claimed, the power to borrow money on the credit of the United States.

To be fair to Epps, he seems to have some qualms about his debt limit proposal, allowing that he would prefer that Obama not have to seize this constitutional power. Yet ideas like this can take on a life of their own. Better to quash them now before some lunatic starts claiming that it is treason to “question” the public debt. Oops, too late.

6 Comments

How about this as a stronger argument: Congress has authorized and appropriated $1 trillion or so in spending in excess of government revenue. The executive branch deals with that by issuing bonds (pursuant to Congressional authority to do so). Congress also passed a debt limit statute that limits the President’s authority to issue debt in order to fund Congressionally-mandated spending. The President is required to faithfully execute the laws Congress passes. He cannot both execute the debt limit statute and Congress spending bills. So what does he do?

One thing he could do, of course, is to continue to pay the public debt as it comes due and choose not to fund non-public debt expenses until he has balanced expenses and revenues. He can do that; paying the current public debt is not going to require all of the government’s revenues and Treasury can issue new debt equal to what it pays off. Of course, doing things this way would require the President to selectively ignore Congressional authorizations and appropriations. He also would have no basis other than his own choices about which government activities to continue funding and which to suspend.

So what is the President to do? He has to choose which laws to faithfully execute. Is there some reason why the debt limit statute would trump appropriations? Since the President has to make a choice, why cannot he choose to ignore the debt limit statute?

I am not sure the Public Debt clause means anything here. One can always argue, as you do, that the government can default on its debts without questioning their validity, although a debtor in default is subject to suit. Perhaps the clause requires the government to pay the public debt before other obligations. Whatever – the problem I see is that Congress is imposing mutually incompatible obligations on the President, who has a constitutional duty to faithfully execute statutes passed by Congress. Since he has to choose, why not choose to continue issuing debt? After, Congress created the problem and it is the only entity with the power to solve it.

Geoffrey- you make an interesting argument. You are changing the focus from the government’s obligation to pay its debts to the President’s obligation to spend the money appropriated by Congress.

Under your theory, the President could not claim a constitutional duty to borrow in excess of the debt limit, but he could argue that he has discretion to do so because Congress has given him inconsistent commands, one of which must be violated.

This strikes me as a stronger argument than the Public Debt Clause, but I see some weaknesses. First, it assumes that the President has a duty to spend money appropriated by Congress, even if Congress has not provided the funds to spend. To comment intelligently one would have to know more about appropriations law than I do, but I think you would have to first look at what statutory provisions Congress has enacted to address the situation of a debt ceiling breach. At a minimum, it seems that the President and Treasury Secretary would have to use the tools that Congress provided to avoid a breach before they could justify taking further action.

Assuming that all available statutory mechanisms have been exhausted, one would then have to resolve the question of whether the Constitution itself prioritizes among the various commands the President has received. As I suggested in one of my posts, I think that one could make a pretty good argument that those obligations which fall within the “public debt of the United States” have priority over other obigations. And I think that there would be an even stronger argument with respect to funds that have been appropriated but not obligated.

Finally, if one were to accept your argument, it would have at least one unsettling implication. If the President can choose to raise funds beyond what Congress has authorized, why couldn’t he choose to do it by raising taxes, rather than by borrowing money? The Constitution gives Congress the power to tax and borrow. If the President can exercise one, it is hard to see a reason why he could not exercise the other.

My thoughts: the President is required to spend what Congress appropriates. See http://www.law.harvard.edu/faculty/hjackson/ExecutiveSpendingPowers_8.pdf. I agree that the executive would have to use all available Congressionally-provided tools before issuing debt in violation of the debt limit statute, but (we have been told) doing so will only buy a few months. I do not think prioritization is relevant because the question is what the President is to do when (1) he has been instructed to spend $1 trillion or thereabouts, (2) he can do so only by issuing debt, and (3) doing so would exceed the debt limit. Prioritization assumes the answer to our question – it assumes that the President cannot spend in excess of the debt limit.

As for taxes, I think that one is easy. The President cannot impose a tax – the procedure for doing so is constitutionally-mandated. I do not think Congress could even authorize the President to impose a tax and, in any case, it has not. However, Congress has authorized the President to issue debt.

So the question is: Congress has instructed the President to spend money. He is obligated to do so, either constitutionally or by operation of the Budget Act. He can do so only by issuing debt. Issuing debt would violate the debt limit statute. The President has to choose between violating his obligation to spend under a multitude of appropriations bills or violating the debt limit. It seems to me that he could, with much justification, choose to execute the appropriations bills by the only means at his disposal.

Geoffrey- Article I says “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises [and] To borrow Money on the credit of the United States;”

Congress has delegated to the executive the authority to collect taxes according to legal parameters established by Congress. It has delegated to the executive the authority to borrow money within legal parameters established by Congress. I don’t really see the distinction.

I am pretty sure that Congress has given the President discretion with regard to establishing the levels of fees and similar revenue-generating measures. Would it be unconstitutional for Congress to authorize the President to set the tax rate on, say, gasoline up to x percent? Maybe, though I am not sure why. Anyway, even if it is true that Congress has more room to delegate with regard to borrowing than with respect to taxes, why would that empower the President to violate the terms of the delegation with respect to the former?

Whether I am right or not on the delegability of the taxing authority, the fact is that Congress has not done so but it has delegated its borrowing authority. I do not think the President has the power to ignore the debt limit as a general matter. The question is whether applying the debt limit would require him to violate his obligation to spend appropriated money. My whole argument that the President can violate the debt limit statute is based on his having an obligation to spend appropriated funds. If he does have such an obligation, then he has to choose which obligation to violate and, I would argue, without any guidance from Congress on the matter, he can choose to violate the debt limit and use his congressionally-provided borrowing authority to fulfill his obligation to faithfully execute appropriations bills.

This analysis depends on the President having an equal obligation to faithfully execute appropriations bills and the debt limit act, such that he has to violate one or the other. If this is incorrect, and an expert in appropriations might say that it is, then my argument does not work. Wouldn’t Charles Tiefer know the answer?

Respectfully, your assertion that “the President’s duty to safeguard the national debt no more enables him to assume Congress’s power of the purse than it would enable him to assume the judicial power when (in his opinion) the Supreme Court acts in an unconstitutional manner” is not sound. The Supreme Court is the ultimate arbiter of what the Constitution means, not Congress. If the President perceives the Congress to be acting in an unconstitutional capacity, he may be permitted (or obligated) to act in a manner that contradicts the Congress. Such conduct is left to the Supreme Court to decide (pending justiciability of course). However, if the President acts contrary to the Supreme Court’s interpretation of the Constitution, then we have a genuine Constitutional crisis.